State's Negligence To Not Appeal An Incorrect Sentencing Order Does Not Preclude High Court From Exercising Its Revisional Powers: Sikkim High Court

The Sikkim High Court has observed that it can exercise its power of revision under Section 397 of the Code of Criminal Procedure, 1973 (Cr.PC), when the Trial Court has wrongly sentenced the accused below the minimum prescribed sentence for an offence.

The division bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan were considering the petition of the accused/appellants against their conviction for gang rape by the Trial Court. The Trial Court had sentenced the accused for 12 years of imprisonment for gang rape under Section 376D of Indian Penal Code, 1860 (IPC).

The High Court noted that Section 376D IPC provides that the punishment for the offence shall not be less than twenty years. It held that the sentencing by the Trial Court was erroneous.

“Thus, the sentence of twelve years meted out by the Learned Trial Court on A1 and A2, for the offence under Section 376D of the IPC is erroneous being alien to the legal provision and flies in the face of the mandate of law.”

The Court referred to the Supreme Court case of Mohd. Hasim vs. State of Uttar Pradesh and Others (Crl.A.No.1218/2016), where it was held that courts do not have discretion to reduce the sentence when there is a prescribed minimum sentence under the law.

The High Court remarked that the State/respondent failed to exercise its power under Section 377 of Cr.PC by which the State can appeal to the High Court against a sentencing order on grounds of inadequacy.

The Court held that the neglect of the State/respondent in not appealing the incorrect sentencing order does not prevent it from excessing its revision powers under Section 397 Cr.PC read with Section 401 Cr.PC, which provides opportunity to the accused of being heard in case of enhancement of sentence.

“It is relevant to remark that the neglect and laxity of the State-Respondent in not preferring an Appeal against the erroneous sentence does not preclude the High Court from exercising its powers of revision under Section 397 read with Section 401 of the Cr.P.C. to enhance the sentence. The convict is of course required to be put to notice and to be extended an opportunity of being heard on the question of sentence, either in person or through his Advocate.”

Case title: Karan Chettri vs. State of Sikkim (Crl. A. No.07 of 2022) and Nima Sherpa @ Nani Ko Bau vs. State of Sikkim (Crl. A. No.08 of 2022)

Citation: 2024 LiveLaw (Sik) 3

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